Cunningham, R (on the application of) v Exeter Crown Court

When a defendant successfully appeals against sentence to the Crown Court, the court should normally make a defendant’s costs order against the respondent or from central funds, unless there are positive reasons not to do so. The Crown Court must give brief reasons where it refuses such an order, or refuses part of the costs, unless the reason is obvious from the circumstances. Judicial review may intervene where the order is unexplained and no rational basis for it appears. A point relied on against costs should ordinarily be put to the appellant’s advocate so that it can be addressed.

The claimant pleaded guilty before magistrates to a licensing offence and was fined £15,000. On appeal to the Crown Court under section 79(3) of the Supreme Court Act 1981, the fine was reduced to £12,000, but the Crown Court refused costs from central funds without giving reasons.

Permission for judicial review was granted on the grounds that the refusal might be unlawful for want of reasons or because the discretion had been exercised unlawfully. The central issue was whether the Crown Court had acted lawfully in refusing a defendant’s costs order after a partially successful sentence appeal.

1. The application for judicial review succeeded. The Crown Court’s order refusing costs was quashed, and the Crown Court was directed to award the claimant his costs of the appeal from central funds. The claimant also received the costs of the judicial review application from central funds.

2. Section 16(3) of the Prosecution of Offences Act 1985 confers a discretion to make a defendant’s costs order where an appeal results in a conviction being set aside or a less severe punishment being imposed. Read with the relevant Practice Directions, the Crown Court should adopt the approach applied to acquitted defendants and successful criminal appellants. Costs should normally be awarded unless there are positive reasons for refusing them.

3. The reasoning requirements identified in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 apply to criminal costs decisions. The court should state why it has refused costs or awarded less than the full costs, although the explanation may be very brief. Reasons need not be stated where the basis of the order is obvious, but a reviewing court may intervene where there are neither reasons nor an obvious explanation and the court has erred in principle.

4. The Crown Court’s possible reasoning was that the claimant or his advisers had failed to place before the magistrates the guidance in F Howe and Sons (Engineers) Ltd [1999] 2 Cr App R(S). That point had not been put to counsel, and it appeared that the authority might in fact have been mentioned before the magistrates. In those circumstances, there was no rational basis apparent for refusing costs.

• Magistrates’ Court at Exeter: the claimant pleaded guilty and was fined £15,000, with an order for £421.60 costs.
• Crown Court at Exeter: on a rehearing appeal, the fine was reduced to £12,000, but the application for a defendant’s costs order from central funds was refused without reasons.
• High Court (Administrative Court): the refusal of costs was quashed. The Crown Court was directed to award the claimant his appeal costs from central funds.